Treason may be justified in case of terror videos

October 14, 2006

By Freedom Newspapers

The words “traitor” and “treason” are sometimes used rather loosely in common parlance, applied to anything from criticizing the current administration’s policies in impolite terms to actually taking up arms in a foreign army at war with the United States. The U.S. Constitution, however, is much more explicit and limited in its understanding of the term:

“Treason against the United States,” reads Article III, Section 3, “shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

The capitalization is antiquated to the 21st century eye, and the phrase “Aid and Comfort” has the sound of a legal formula whose meaning we moderns have forgotten. But the key word and phrase are “only” and “No person shall be convicted of Treason unless … .”

The founders took treason very seriously and defined it narrowly. Their wisdom has held up: Treason prosecutions have been rare in this country because the founders established a society so free, with such respect for individual expression and choice, that it would take very deliberate and conscious actions that clearly and potentially endangered the state, rather than merely annoying or embarrassing it, to constitute treason.

The last person convicted of treason was Tomoya Kawakita, a Japanese-American sentenced to death in 1952 for treating American prisoners brutally during World War II. Now Adam Yahiye Gadahn, who converted to a radical brand of Islam while living with his grandparents in Santa Ana, Calif., in the 1990s and has since become Azzam al-Amriki, appearing in several al-Qaida videos as “Azzam the American,” has been indicted for treason by federal prosecutors based in Santa Ana.

Given that Adam Gadahn has not been seen in this country since 1997 or 1998, when he reportedly moved to Pakistan, this could be more gesture than a concrete attempt to punish him for what he has done. But what he has done might well fit the definition of treason.

He has appeared twice on videos along with Ayman al-Zawahiri. He has called for the streets of America “to run red with blood.” Authorities believe he was the person with face mostly covered who warned Americans in 2004, on the third anniversary of 9/11, to be ready for “either pragmatic surrender or a protracted, painful war.” “We love peace,” he proclaimed, “but peace on our terms, peace laid down by Islam, not the so-called peace of occupiers and dictators.” He exulted that Osama bin Laden’s followers “love nothing better than the heat of battle, the echo of explosions and slitting the throats of infidels.”

Those are only words, some might say, and, besides, Congress has not declared war, so constitutionally the United States is not at war.

But those words were videotaped to serve the interests of and distributed by al-Qaida, not simply the rantings of some blogger. And while Congress might not have declared war as the writers of the Constitution would have preferred, there is little doubt that al-Qaida and its leaders have declared they are at war with the United States. Restrictive as it is, the treason clause refers to “levying war” against the United States, not specifically to being in an opposing army during a congressionally declared war.

If Adam Gadahn is ever captured and/or turned over, he might well consider it his radical duty to confess in court what he has declared on videotape — that he is waging jihad against this infidel nation. If not, the requirement of two witnesses might prove legally sticky.

It is not out of line to indict an American who has so publicly declared his loyalty to the other side in the “war on terror.” It’s unlikely that many other Americans fit the criteria for treason — John Walker Lindh, remember, was convicted on espionage charges rather than treason. But this indictment, whatever it might lead to, seems justified.